Thursday, December 6, 2012

Marvin Miller: A Brief Legal History

Marvin Miller, who led the Major League Baseball Players
Association from 1966 until 1982, died last week. Miller is best known for his role in orchestrating
the downfall of baseball’s century-old reserve clause system, under which
owners basically dictated where players played and for how much. More than any other individual, Miller thrust
baseball into the modern era—an era characterized by players regularly moving
between teams in search of new multi-million dollar contracts and collective
bargaining as a primary policy-making mechanism for the game. Under his leadership, the Players Association
went from something of a joke (the players “didn’t know what a union was, but
they knew they didn’t want one,” Miller later recalled) to arguably the most
powerful union in America. Miller has
been rightly celebrated as one of the handful of the most consequential figures
in the history of baseball.

Miller’s achievements can be traced to various factors, but
one that stands out for me was his skill at tapping into the rhetoric of legal
rights. Miller was not a lawyer (he was
an economist by training), and, from the perspective of the courts, his provocative
legal claims generally were nonstarters.
In nonjudicial settings, however, these same claims did considerable work. Miller drew upon the language of the law—and
specifically the language of individual rights—to reframe complex issues of
competing interests into matters of right and wrong, of exploitation and justice.

Two examples illustrate the point, one drawn from his great
achievement in transforming labor policy in major league baseball, the other
from his role in delaying implementation of player drug testing, the most
conspicuous black mark on Miller’s legacy.

Miller always insisted that the reserve system violated the players’
most basic freedoms. It was a question,
he said, of their constitutional rights. “I talked about how the reserve clause made
them pieces of property,” Miller said about his meetings with players after he
took charge of the union. “It took away
all their dignity as human beings.” When,
in 1969, star St. Louis Cardinals centerfielder Curt Flood refused to accept a
trade, Miller helped him draft a now-famous letter to baseball’s commissioner
in which he explained, “I do not feel I am a piece of property to be bought and
sold irrespective of my wishes. I
believe that any system which produces that result violates my basic rights as
a citizen ….”

These kinds of arguments sound like legal claims, but they
were not the kind that fared well in court.
Most obviously, as private actors, the owners were not constrained by
most of the rights protections provided in the U.S. Constitution. One exception is the Thirteenth Amendment’s prohibition
on slavery and involuntary servitude, which is not limited to “state actors.” And in fact there is a long history in
baseball of critics of the reserve system, including the occasional judge,
denouncing the practice as analogous to chattel slavery. But no one seriously considered taking a
Thirteenth Amendment claim against the reserve clause to court—no one, that is,
until Flood. With Miller’s encouragement
and support, and with ex-Supreme Court Justice Arthur J. Goldberg representing
him, Flood challenged the reserve clause all the way to the Supreme Court. Flood’s Thirteenth Amendment claim went exactly
nowhere—neither in the court of law nor in the court of public opinion, where
Flood was ridiculed as a “slave” who pulled in $100,000 a year for playing
baseball. By the time the case got to
the Supreme Court, Flood’s lawyers had abandoned their Thirteenth Amendment
claim and focused their challenge squarely on the question of whether
baseball’s labor practices violated federal antitrust law. Flood still lost. [See Brad Snyder’s excellent book, A Well Paid Slave: Curt Flood's Fight for Free Agency in Professional Sports (2006). While I'm on the topic of my favorite baseball history books, be on the lookout for Stuart Banner's, The Baseball Trust: A History of Baseball's Antitrust Exemption, due out in April.]

Nonetheless, Miller’s insistence that the core of the issue
was about dignity and individual rights did eventually gain traction. Players gradually began to fall in behind
Miller and his speeches about their dignity and rights. By the mid-1970s, the tide of public
opinion—and, as importantly, the attitudes of the sporting press—had shifted,
and idea that the reserve clause implicated fundamental questions about individual
freedom and dignity was beginning to take hold.
The reserve clause finally met its end via a 1975 grievance arbitration
decision. For Peter Seitz, the
arbitrator whose ruling brought Miller his great triumph, the union leader was “the
Moses who had led Baseball’s children of Israel out of the land of bondage.” As a result of Miller’s efforts, “ballplayers
for the first time attained dignity from owners,” was the assessment of Hall-of-Fame
pitcher Robin Roberts, one of the ballplayers who had recruited Miller back in
1966. What was far-fetched hyperbole
when Miller first started pressing this kind of argument had become a standard
narrative for describing this episode in baseball history.

The verdict of history has been far less kind to Miller when
it comes to performance enhancing drugs in baseball. In defending his adamant opposition to player
drug testing, Miller drew upon the same techniques he used in challenging the
reserve clause: he recast the stakes of the issue into a question of rights. The issue here, according to Miller, was not
player health, it was not a level playing field, it was not the integrity of
the game and its hallowed records. It
was a matter of principle—specifically of protecting players against
unwarranted invasions of their privacy, personal autonomy, and dignity. Miller insisted that to subject players to
random drug testing would compromise these fundamental rights.

When Miller ran the Players Association, baseball’s drug
problem involved the abuse of recreational drugs, particularly cocaine. After Miller retired in 1982 to a role of
informal advisor to the players’ union and go-to guy for reporters on matters
relating to baseball’s labor relations, the issue turned from cocaine to
steroids, but Miller’s tune never changed.
Beginning in the late 1980s, baseball’s commissioners made tentative gestures
to address the problem of performance enhancing drugs, yet the union, with
Miller’s encouragement, adamantly opposed any testing program as a violation of
players’ rights.

In 2002, in the face of what was increasingly looking like
an epidemic of drug usage in the game, with rumbling threats of government
intervention, the union and the owners finally agreed to a drug testing
program. A long overdue measure, most
felt. But not Miller. To demand that players be tested was accept
that they “no longer be treated as citizens.”
We should not “simply waive a player’s civil rights because he happens
to be a professional athlete,” he declared. When an interviewer pointed out that Olympic
athletes were subject to random drug testing, Miller described such practices “an
absolutely outrageous violation of a person’s individual rights”; they “should
be absolutely unacceptable under any circumstances.”

So here we have Miller at his best and Miller at his worst. The tool Miller turned to again and again was
to reframe matters of interests and power (politics, in its most generic sense)
into matters of rights. Put another way,
his standard move was to legalize, rhetorically at least, the issue. It was not a balance of competing interests
that needed to be struck, he would insist, it was an indefensible violation of
basic rights. In leveraging rights talk
as a tool of solidarity-building and negotiation Miller embraced a common tool
of the trade for social movement activists.
Miller’s understanding of the power of rights, particularly those rights
claims that have little or no chance of being recognized in court, helped shape
the course of baseball history.